Alfa Int'l Seafood v. Ross

• Decision Date: 28 August 2017
• Docket Number: Case No. 1:17–cv–00031 (APM)
• Citation: 264 F.Supp.3d 23
• Parties: ALFA INTERNATIONAL SEAFOOD, et al., Plaintiffs, v. Wilbur L. ROSS, Jr., et al., Defendants.
• Court: U.S. District Court — District of Columbia

264 F.Supp.3d 23

ALFA INTERNATIONAL SEAFOOD, et al., Plaintiffs,

v.Wilbur L. ROSS, Jr., et al., Defendants.

Case No. 1:17–cv–00031 (APM)

United States District Court, District of Columbia.

Signed August 28, 2017

Laura Metcoff Klaus, Robert Phillip Charrow, Greenberg Traurig, LLP, Washington, DC, for Plaintiffs.

Frederick Harter Turner, Devon Lea Flanagan, U.S. Department of Justice, Washington, DC, Michael Fenton Scanlon, J. Timothy Hobbs, K & L Gates LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

Amit P. Mehta, United States District Judge

"One fish two fish red fish blue fish. Black fish blue fish old fish new fish....

Say! what a lot of fish there are."

—Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960)

I. INTRODUCTION

It turns out that there are a lot more fish in the sea than even Dr. Seuss imagined. So many, in fact, that countries, including the United States, historically have had difficulty keeping track of the seafood that crosses their borders. This is increasingly problematic, as the United States consumes billions of pounds of seafood every year and, as many U.S. consumers may be surprised to learn, more than 90% of that seafood is imported. Thus, the vast majority of seafood consumed each year in the United States either originates from waters far from home or is caught locally but passes through a foreign processing and distribution chain. Take, for example, a catch of king crab harvested off the coast of Alaska. That crab may be sent from Alaska to South Korea or China for processing and packaging. The packaged crab meat, in turn, is exported from Asia across the Pacific to the United States, to be combined with other ingredients into a crab cake, eaten by someone with little appreciation for the peripatetic journey that produced her meal. This multistage, multinational process means that the worldwide marketplace for seafood is big business. The United States alone imports more than $10 billion in seafood every year.

The complexity of this catch-to-table distribution chain, however, is rife with vulnerabilities. It is well documented that, at each stage, opportunists seek to game the system, largely by circumventing laws or norms that regulate the manner in which the world seafood market operates. Such activities—known as "illegal, unreported, and unregulated" ("IUU") fishing and "seafood fraud"—have had profound global and domestic economic and noneconomic consequences.

This case is about a U.S. federal government regulation, known as the "Seafood Import Monitoring Program" (the "Rule"), which aims to address the problem of IUU fishing and seafood fraud. Promulgated by the Department of Commerce (the "Department") through its sub-agency, the National Marine Fisheries Service, the Rule's purpose is to protect U.S.-based fisheries and fishermen from unfair competition, as well as increase global food security and promote the sustainability of marine resources. Starting on January 1, 2018, the Rule will require U.S.-based importers of seafood to collect information about each stage of the supply chain for certain types of seafood imported into the United States, starting from the catch's point of origin until its arrival to our shores. Importers also will have to identify the seafood species entering the United States, as well as obtain a permit from the Department to continue importing seafood into the United States. The agency anticipates that these requirements will increase the expense of importing seafood and, ultimately, may increase the cost of seafood to the consumer.

This case presents a challenge to the Rule. Plaintiffs include several U.S.-based seafood importers, processors, and harvesters who claim that the Department violated federal law in promulgating the Rule and that businesses will be harmed as a result. In broad strokes, Plaintiffs posit that the Department acted without proper authority, under both the relevant statutes and the Constitution, by issuing an overly expansive and highly burdensome regulatory regime and relying on insufficient evidence to do so. Specifically, Plaintiffs maintain that (1) the Rule was not issued by someone with either the statutory or constitutional authority to do so; (2) the Department acted outside its authority under the Magnuson–Stevens Fishery Conservation and Management Act ("MSA"), Pub. L. No. 94–265 (codified as amended at 16 U.S.C. §§ 1801 – 1891 ),¹ in issuing regulations aimed at seafood fraud; (3) the Rule was promulgated in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., because it is based on undisclosed or insufficient supporting information; and (4) the Department failed to properly complete a Regulatory Flexibility Analysis concerning the Rule's effect on small businesses, as required under the Regulatory Flexibility Act, 5 U.S.C. §§ 601 – 611. Plaintiffs urge the court to invalidate the Rule.

Before the court are the parties' cross-motions for summary judgment. Having given careful consideration to the parties' arguments and closely reviewed the extensive administrative record, the court finds that (1) the Rule's issuance did not run afoul of the MSA, and the current Secretary of Commerce validly ratified the Rule, thereby curing any alleged constitutional defect in the Rule's promulgation; (2) Congress granted the Department authority to issue regulations to combat seafood fraud, and the Department did not encroach upon another agency's exclusive jurisdiction by so doing; (3) the Rule does not violate either the procedural or substantive requirements of the APA; and (4) the Department did not transgress the requirements of the Regulatory Flexibility Act. Accordingly, the court denies Plaintiffs' Motion for Summary Judgment and grants Defendants' Cross–Motions for Summary Judgment.

II. BACKGROUND

A. Factual Background

1. Illegal, Unreported, and Unregulated Fishing and Seafood Fraud

"Illegal, unreported and unregulated" ("IUU") fishing encompasses a broad range of illicit conduct. It includes (1) fishing in violation of national, regional, or international laws and regulations ("illegal"); (2) failing to report or misreporting fishing activities to proper authorities when required ("unreported"); and (3) fishing in areas or for fish stocks for which management measures are lacking ("unregulated"). See Admin. Rec., ECF Nos. 71–74, 77, 79 [hereinafter A.R.], at 013102.²

IUU fishing has had tremendous economic, environmental, and health impacts. IUU-caught fish have flooded markets worldwide and eroded the profits of legitimate fishermen by undercutting their prices. Id. at 000001. One study, for instance, estimates that IUU fishing causes annual worldwide economic losses between $10 billion and $23.5 billion. Id. at 000357. Another study found that between 20% and 32% of wild-caught seafood imported into the United States originates from IUU fishing, with an estimated value between $1.3 billion and $2.1 billion. Id. at 000360. IUU fishing also has environmental impacts. Illegal fishing often violates internationally established conservation and management measures, which in turn has adverse impacts on fisheries, marine ecosystems, and coastal communities worldwide. Id. at 013102–03. Finally, IUU fishing operations are unlikely to observe seafood health regulations, thereby passing health risks along to consumers. Id. at 013103. The scourge of IUU fishing is thus a problem of global concern.

A related problem to IUU fishing is "seafood fraud." Generally speaking, seafood fraud is the practice of misleading consumers about the type or origin of seafood. Id. The most prominent seafood fraud practices are "species substitution"—i.e., falsely representing the type of fish being sold—and mislabeling—i.e., misrepresenting the seafood's country of origin. Id. As a result of such behavior, for instance, consumers who purchase "wild-caught" salmon may actually be getting farm-raised salmon. Worse yet, a consumer who bites into a tuna sandwich may not be eating tuna at all, but instead, escolar, which is a less expensive species of fish potentially harmful to human health. Id. at 002459. Thus, seafood fraud not only denies the consumer the right to know what she is eating, but also can present latent health risks.

2. The IUU Task Force

To address these concerns, on June 17, 2014, President Obama established by Executive Order a "Presidential Task Force on Combating Illegal, Unreported, and Unregulated Fishing and Seafood Fraud" (the "IUU Task Force" or "the Task Force"). See id. at 000001–04. The President established the IUU Task Force as a subcommittee reporting to the National Ocean Council and designated as its co-chairs the Secretaries of Commerce and State, or their designees. Representatives from 12 other federal agencies served as Task Force members. The President charged the Task Force with developing a comprehensive scheme to "combat IUU fishing and seafood fraud" by "implement[ing] existing programs, and, if appropriate, develop[ing] ... new, voluntary or other, programs for seafood tracking and traceability." Id. at 000002. The President directed the Task Force to make, within 180 days, "recommendations for the implementation of a comprehensive framework of integrated programs to combat IUU fishing and seafood fraud that emphasizes areas of greatest need." Id.

The Task Force commenced its work immediately. It initiated a public process to solicit information and advice on recommendations to combat IUU fishing and seafood fraud. Id. at 013107. That process included inviting public comment through a notice in the Federal Register, holding public meetings, and hosting webinars. Id. The Task Force also analyzed the federal government's existing enforcement authority with respect to IUU fishing and seafood fraud, including gaps in such authority, and examined areas for improved coordination among federal agencies. Id.

Six months later, in December 2014, the Task Force made 15 recommendations to the President...